Sunday, 3 April 2022

SUPREME COURT CLEARS SEVEN NATPHARM BOARD MEMBERS

SIX former board members of the State-owned National Pharmaceutical Company (NatPharm) are now free after the Supreme Court acquitted them of corruption charges, overturning a High Court decision made last year that they must stand trial.

 The six were facing criminal abuse of office for charges for allegedly failing to retire managing director, Florah Nancy Sifeko, when her tenure of office lapsed.

They unsuccessfully sought to have the charges quashed through an application for an exception to the charges in July last year.

 But last week, former board chairman Billy Rigava, his then deputy Rachael Chibaya, board members Johnson Shonhe, Notburga Chifamba, Charles Maponga and Gerald Gore, were a relieved lot after the superior court allowed their appeal.

A three-judge panel of Justices Lavender Makoni, Alfas Chitakunye and Hlekani Mwayera, unanimously found merit in the appeal and quashed the lower court’s judgment.

 “The appeal be and is hereby allowed. The judgment of the court a quo is set aside and substituted with the following: (i) The application for review be and is hereby granted (ii) the applicant’s exception to the charges relating to the contravention of Section 174 (i) of the Criminal Law (Codification and Reform Act) Chapter 9: 23 be and is hereby upheld and the charges against the applicants be and are hereby quashed,” read the judgment.

 Mr Rodgers Matsikidze, who instructed Advocate Lewis Uriri to argue the appeal for his client Chifamba, described the Supreme Court ruling as ground-breaking.

 “This is quite a landmark ruling in that it dealt with the controversy around policy makers and decision implementers,” he said.

“In particular, whether a policy maker who is a board member can be charged with abuse of office on issues that require another person to implement.

“More importantly the issue or where you draw a line between abuse of office and mere omission.

“The matter dealt with issues of to what extent an exception can be sustained. Overall, a good and sound judgment.”

The six approached the High Court last year on review of regional magistrate Ms Estere Chivasa’s decision dismissing their request to have the charges dropped.

 It was their argument that the exceptions taken were on the basis of that factually and legally no offence was disclosed in the charge. The reasoning was that, an extant judgment which they argue was binding existed and has pronounced that Natpharm was not a public entity.

 Its officers, therefore, did not owe a public duty and could not be charged in terms of the charge preferred.

 But the prosecution opposed the application arguing that the six could only raise an exception where the charge fell short in terms of the provision of the law under which they were being charged.

 It was on that basis that High Court judge Justice Phildah Muzofa found no misdirection on the part of the trial court and threw out the application.

 The judge ruled that if the six alleged that the charge was based on falsehoods and that the prosecution withheld facts known to it invariably means the court had to be favoured with what the applicants allege is the truth.

 This, she said, could only be done through evidence and the court would have to interrogate the veracity of each party’s evidence before a substantive decision is made.

 In their application at the High Court, the six’s contention was that the trial court failed to consider a binding decision granted in NatPharm’s favour that had declared the company to be privately-owned and thus did not have any public duty in relation to the conduct of its officials and employees.

 They argued, the trial magistrate had erred in ordering the trial to proceed when it was apparent that the factual basis on which the charge sheet was based was false. Herald

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